GPA Store: Featured Products

Monday, August 12, 2013

The Obama administration recently released a white paper which summarizes the supposed legal justification for the bulk collection of Americans’ phone records. Contained therein are some thoroughly nonsensical and leave the door open for massive invasions of privacy.

The Department of Justice white paper deals with the “Associational Tracking Program,” operated under section 215 of the Patriot Act, codified in the U.S. Code as 50 USC § 1861.

“There is no direct authorization for the Associational Tracking Program in section Patriot Act section 215,” writes Cindy Cohn, legal director and general counsel for the Electronic Frontier Foundation.

The statute includes no authorization of the NSA’s mass collection and analysis of the Americans who are neither suspects nor targeted individuals.Furthermore, the statute does not authorize such collection on a continuous basis or the practice of requiring records that have yet to be produced, as the court order did in requiring future records from Verizon.

“The plain meaning of the statute fails to reach their breathtaking and unprecedented activities and it isn’t even ambiguous about it,” Cohn writes

On page 16 of the white paper, the Justice Department argues that they can order prospective information because “nothing in the text of the statute suggests that FISC [Foreign Intelligence Surveillance Court] orders may relate only to records previously created.”

Cohn notes that this kind of argument was addressed by Justice Antonin Scalia in the 2001 Supreme Court case, Whitman v. American Trucking.

The Obama administration did “some fancy legal dancing — stretching terms like ‘tangible things’ and ‘relevance’ beyond recognition,” Cohn wrote.The administration claims that, “’relevance’ is a broad standard,” so broad in fact that they claim that it “permits discovery of large volumes of data in circumstances where doing so is necessary to identify much smaller amounts of information within that data that directly bears on the matter being investigated.”

As Spencer Ackerman notes, they argue that “relevance” can “include the ‘reasonable grounds to believe’ that when all the data is collected, ‘when queried and analyzed consistent with the [surveillance] Court-approved standards, will produce information pertinent to FBI investigations of international terrorism.’”

Furthermore, “tangible thing” now means anything from a phone number to the length of a phone call, despite the fact that such data is not, in fact, a “tangible thing.”

“There is little question that in enacting Section 215 in 2001 and then amending it in 2006, Congress understood that among the things that the FBI would need to acquire to conduct terrorism investigations were documents and records stored in electronic form,” the document claims.

In the document, the government argues:

[…] there is an exceptionally strong public interest in the prevention of terrorist attacks, and telephony metadata analysis can be an important part of achieving that objective. This interest does not merely entail “ordinary crime-solving,” King, 133 S. Ct. at 1982 (Scalia, J., dissenting), but rather the forward-looking prevention of the loss of life, including potentially on a catastrophic scale. Given that exceedingly important objective, and the minimal, if any, Fourth Amendment intrusion that the program entails, the program would be constitutional even if the Fourth Amendment’s reasonableness standard applied.

Mike Masnick of TechDirt pointed out that if this argument is taken to its logical conclusion, it would be quite a slippery slope, aside from the fact that “there has yet to be any evidence presented that Section 215 did anything at all to prevent terrorism.”

“But, even more to the point, that justification is the justification for wiping out the entire 4th amendment. There’s an exceptionally strong public interest in stopping all kind of negative activity, so why not place a video cameras and a recorder in every private room in the country?” Masnick wrote.

The government goes on to argue:

Moreover, information concerning the use of Section 215 to collect telephony metadata in bulk was made available to all Members of Congress, and Congress reauthorized Section 215 without change after this information was provided. It is significant to the legal analysis of the statute that Congress was on notice of this activity and of the source of its legal authority when the statute was reauthorized.

To make matters even worse, as Masnick points out, this argument comes down to essentially claiming that “because Congress did not explicitly tell us to stop collecting all data, we take that as implicit permission to collect all data.” Yet if they were not actually aware of the extent of the data collected, they couldn’t have specifically blocked such collection.Even Rep. Jim Sensenbrenner (R-Wis.), the author of the Patriot Act, has said he is “extremely disturbed” by the administration’s distortion of the Act’s intent and does “not believe the released FISA order is consistent with the requirement of the Patriot Act.”

“How could the phone records of so many innocent Americans be relevant to an authorized investigation as required by the Act?” Sensenbrenner asked.

Suffice it to say, the white paper is riddled with problems, some of which may be addressed in future articles here at End the Lie.

However, perhaps the most significant aspect of the release of the paper is that the government’s legal rationales are finally out in the open.

This leads Cohn to note that the EFF hopes “to finally be able to fight this out in the place where competing interpretations of federal statutes should be decided: in the public federal courts where both sides get to argue.”

I’d love to hear your opinion, take a look at your story tips and even your original writing if you would like to get it published. I am also available for interviews on radio, television or any other format. Please email me at Admin@EndtheLie.com

Please support our work and help us start to pay contributors by doing your shopping through our Amazon link or check out some must-have products at our store.

Madison Ruppert is the Editor and Owner-Operator of the alternative news and analysis database End The Lie and has no affiliation with any NGO, political party, economic school, or other organization/cause. He is available for podcast and radio interviews. Madison also now has his own radio show on UCYTV Monday nights 7 PM - 9 PM PT/10 PM - 12 AM ET. Show page link here: http://UCY.TV/EndtheLie. If you have questions, comments, or corrections feel free to contact him at admin@EndtheLie.comEnter your email address to subscribe to our newsletter:

Delivered by FeedBurnerBe the Change! Share this using the tools below.

There is a new and unique development in human history that is taking place around the world; it is unprecedented in reach and volume, and it is also the greatest threat to all global power structures: the ‘global political awakening’. -Andrew Gavin Marshall

Amazon Promotions

Global Political Awakening is an Independent News blog for Activists challenging the abuses of the establishment. We provide the latest news and information about the "New World Order" and the "Global Political Awakening".

FAIR USE NOTICE. Many of the stories on this site contain copyrighted material whose use has not been specifically authorized by the copyright owner. We are making this material available in an effort to advance the understanding of environmental issues and sustainability, human rights, economic and political democracy, and issues of social justice. We believe this constitutes a 'fair use' of the copyrighted material as provided for in Section 107 of the US Copyright Law. If you wish to use such copyrighted material for purposes of your own that go beyond 'fair use'...you must obtain permission from the copyright owner.

Paid advertising on Global Political Awakening may not represent the views and opinions of this website and its contributors. No endorsement of products and services advertised is either expressed or implied.